Bangalore District Court
M/S Capital First Ltd vs Arun Kumar .E on 14 March, 2023
KABC0B0026592019
IN THE COURT OF THE XV ADDL., JUDGE, &
23rd ACMM, COURT OF SMALL CAUSES,
MAYO HALL UNIT, (SCCH-19) BENGALURU
Dated this the 14th day of March 2023
Present: Smt.Rajeshwari-J-Puranik,
B.A., LL.B., (Spl.,)
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
CC.No.60179/2018
COMPLAINANT: M/s Capital First ltd.,
C-1 RP's Pride, 1st floor,
20th Main road,
KHB, 5th block,
Opp: Ganesh Temple,
Koramangala,
Bangalore - 560095.
Rept by its Authorised
Representative,
Ms.Savitha .S. Patil
(By Pleader Sri.V.Suresh)
V/s
2 SCCH-19
CC No.60179/2018
ACCUSED : Arun Kumar .E.
Father Name: Eeregowda S.H.
Age 29,
No.287, 2nd floor, 12th Cross,
near SKB Saraswathi Nagar,
Vijay Nagar, Near Bus stop,
Bangalore Karnataka - 560040
(By Pleader Sri.K.S.Surya Prakash Reddy)
*****
Date of offence : 10-04-2018
Date of report of offence : 08-06-2018
Date of arrest of the accused : -
Date of recording of evidence : 25-11-2021
Date of closing of evidence : 25-11-2021
Offence complained of : U/sec. 138 of N.I
Act
Judgment : Conviction
*****
JUDGMENT
The Complainant filed this complaint against the accused under Section 200 of Cr.P.C for the offence punishable under Section 138 of N.I. Act.
3 SCCH-19 CC No.60179/2018
2. Brief contents of the complaint are as under:
The Complainant company incorporated under the companies Act, 1956 and engaged in the non banking activities and services lending credit facilities to its customers under varied categories.
3. The accused applied for PLCL finance facilities and same was sanctioned to accused bearing loan in No.9597612 by the Complainant company and towards payment and discharge of his part liability, the accused had issued one Cheque bearing No.000033 Dated: 04-04-2018 for a sum of Rs.44,160/- drawn on HDFC Bank Ltd., in favour of the Complainant. On presentation of said cheque for encashment through it's banker, HDFC Bank Ltd., M.G. road Branch, Bangalore, same was returned on 10-04-2018 with an endorsement for the reasons "Insufficient Funds". Hence, the Complainant got issued legal notice to the accused on 30-04-2018 demanding due amount within 15 days from the date of receipt of legal notice. The said notice was served on accused on 4.5.2018 as per postal track consignment. Despite service of notice, neither the 4 SCCH-19 CC No.60179/2018 accused paid any amount nor replied to the said notice. Hence, the accused committed an offence punishable U/sec.138 of N.I. Act. Therefore, this complaint was filed against the accused.
4. After filing of the complaint, it was registered under P.C.R.. and cognizance was taken for the offence punishable U/sec.138 of N.I. Act, by the then Presiding Officer. Then sworn statement of the Complainant was recorded. After considering the documents and sworn statement of the Complainant, case was registered and summons were issued by the then Presiding Officer to the accused.
5. In pursuance of the summons, the accused appeared through his counsel and got enlarged on bail. Plea of the accused was recorded, accused pleaded not guilty and claimed to be tried. Hence case was posted for trial.
6. The Sworn statement of the complainant was treated as Chief examination in view of the guidelines issued by Hon'ble Apex Court in the case of Indian 5 SCCH-19 CC No.60179/2018 Bank Association and others V/s Union of India and others.
7. To prove the guilt of the accused, the Authorized Signatory of the Complainant got examined herself as PW.1 and got marked Ex.P1 to Ex.P7 documents. Accused remained absent, inspite of giving sufficient time accused did not cross examine PW.1. Hence, in view of the guidelines of Hon'ble Apex Court in the case of Indian Bank association & others, V/s Union of India and others., the Cross examination of PW.1 was taken as nil in the absence of accused and case was posted for arguments of Complainant side.
8. Inspite of granting sufficient opportunity the accused did not appear before the court, hence, the statement under Section 313 of Cr.P.C was not recorded and also the accused had not adduced any defence evidence.
9. Heard the arguments of Learned Counsel for the Complainant.
10. Perused the materials available on records. The Points that arise for my consideration are as under:
6 SCCH-19 CC No.60179/2018 POINTS
1. Whether the Complainant proves that, the accused issued a Cheque bearing No.000033 dated: 04-04-2019 for a sum of Rs.44,160/-
drawn on HDFC Bank, in favour of the Complainant to discharge his legal recoverable debt or other liability?
2. Whether the Complainant further proves that, on presentation of said cheque for encashment before HDFC Bank ltd., M.G. road branch, Bangalore, same has been dishonoured and returned for the reasons "Funds Insufficient" and inspite of issuance of legal notice, accused failed to pay the cheque amount and thereby accused committed an offence punishable U/sec.138 of N.I. Act?
3. What order?
11. My findings to the above Points are as under:
Point No.1: In the Affirmative, Point No.2: In the Affirmative, Point No.3: As per final order for the following:
REASONS
12. Point No.1 and 2:- It is specific case of the Complainant that, the accused applied for PLCL finance facilities and same was sanctioned to accused bearing loan in No.9597612 by the Complainant 7 SCCH-19 CC No.60179/2018 company and towards payment and discharge of his part liability, the accused had issued one Cheque bearing No.000033 Dated: 04-04-2018 for a sum of Rs.44,160/- drawn on HDFC Bank Ltd., in favour of the Complainant. On presentation of said cheque for encashment through it's banker, HDFC Bank Ltd., M.G. road Branch, Bangalore, same was returned on 10-04-2018 with an endorsement for the reasons "Insufficient Funds". Hence, the Complainant got issued legal notice to the accused on 30-04-2018 demanding due amount within 15 days from the date of receipt of legal notice. The said notice was served on accused on 4.5.2018 as per postal track consignment.
13. In order to substantiate the case, the Authorized Representative of the Complainant got examined as PW.1, She reiterated entire contents of complaint in her affidavit and got marked 7 documents as Ex.P1 to Ex.P7. Ex.P1 & 2 are the Notarized copy of Letter of Authorization, Ex.P3 is the Original Cheque bearing No.000033 dated 04.04.2018. Ex.P4 is the Bank memo. Ex.P5 is the copy of legal notice dated 8 SCCH-19 CC No.60179/2018 01.05.2018, Ex.P6 is Postal receipt and Ex.P7 is the Postal Track consignment for having served the legal notice to the accused on 04.05.2018. So, the present complaint is filed on 08.06.2018 i.e., within the period of limitation. Therefore complaint complied all the ingredients of U/s 138 of NI Act.
14. Inspite of granting sufficient time, accused did not cross examine PW.1 and did not keep himself present for recording statement U/s 313 of Cr.P.C. The learned counsel for the Complainant submitted by relying upon guidelines of Hon'ble Supreme Court of India,. passed in (2014) 5 Supreme Court Cases 590, between Indian Bank association & others, V/ s Union of India and others, to close the matter, as it is a summary proceedings, hence, Cross examination of PW.1 was finally taken as nil.
15. Further, learned counsel for the Complainant argued that, the cheque belongs to the accused and same is not denied by the accused. Accused had not led any defence evidence and had not Cross examined the PW.1. The accused issued Ex.P3 cheque for return of loan amount of Rs.44,160/- and on 9 SCCH-19 CC No.60179/2018 presentation of said cheque for encashment, same was returned with endorsement stating "Insufficient funds". Therefore, as per Ex.P3 to 7 it is established by the Complainant that the Ex.P3 cheque is issued for legally enforceable debt. Hence Ex.P3 to 7 remained unchallenged and unrebutted. As per section 139 of NI Act and 118 (A) is available to the complainant and same is not rebutted by the accused in more probable manner than that of the complainant.
16. The accused had not cross examined the Complainant. Hence entire case of the Complainant remained unrebutted, Therefore evidence of PW.1 and Ex.P3 to 7 reveal that, the accused issued the cheque for legally enforceable debt. Hence, the accused utterly failed to discharge his onus and also failed to rebut the legal presumption. Accordingly, I answer Point No.1 & 2 in the Affirmative
17. Point No.3: The punishment for offence punishable U/sec.138 N.I. Act is imprisonment for a period which may extent to Two years or with fine. By considering the facts and circumstances, nature and 10 SCCH-19 CC No.60179/2018 year of transaction this Court is of the considered opinion that it is just and proper to impose fine of Rs.60,000/- and awarding Rs.55,000/- as compensation to the Complainant as per Sec.357(1) of Cr.P.C. and remaining amount of Rs.5,000/- shall be remitted to the state. Accordingly, I proceed to pass the following :
ORDER Acting U/sec.252(2) of Cr.P.C I hereby convict the accused for the offence punishable U/sec.138 of N.I. Act.
The accused is sentenced to pay fine of Rs.60,000/- (rupees Sixty thousand only). In default of payment of fine, the accused shall undergo simple imprisonment for a period of 3 months.
In exercise of powers conferred U/sec.357(1) (b) of Cr.P.C, out of fine amount a sum of Rs.55,000/- is order to be paid to the Complainant as compensation and the remaining amount of Rs.5,000/- shall be remitted to State.
Bail bond of the accused stands canceled.
11 SCCH-19 CC No.60179/2018 Supply free copy of this Judgment to the accused.
(dictated partly to the stenographer directly on computer, then corrected by me and pronounced in open court on this the 14th day of March 2023.) (Rajeshwari-J-Puranik) XV Addl. Small Causes Judge & XXIII A.C.M.M., Bengaluru.
ANNEXURE List of witnesses examined for Complainant:
PW.1 : Nagarathna .K. List of documents exhibited for Complainant:
Ex.P1&2 : Notarized copy of Letter of Authorization, Ex.P3 : Cheque.
Ex.P4 : Bank memo. Ex.P5 : Copy of legal notice, Ex.P6 : Postal receipt Ex.P7 : Postal Track.
List of witnesses examined for accused: -Nil-
List of documents exhibited for accused: -Nil-
(Rajeshwari-J-Puranik) XV Addl. Small Causes Judge & XXIII A.C.M.M., Bengaluru.